American History: The Constitution (1787-89)

Figure 1.--The right to vote is one of the most fundamental rights of a democratic system. This right was, however, not one addressed in the Constitution. Perhaps because of that the question of voting is addressed by more amendments than any other issue. Voting was left to each state to decide who could vote in both Federal and state elections. The franchise was at first very limited, restricted to adult white men with property. One theme in American history was the gradual expansion of the franchise. Mrs. Suffern here in 1914 wears a sash and carries a sign reading "Help us to win the vote". She is surrounded by a crowd of not all that sympathetic men and boys. The Suffragette Movement was a major effort to expand American democracy, This was finally accomplished after World War I by the 19th Amendment (1920).

The Constitution is the first important written plan crafted to establish a new republic. Madison came to the Convention armed with a carefully crafted plan which came to be called the Virginia Plan. Madison's role at the Convention has resulted in him being seen as the "father" of the Constitution. It was conceived to limit the powers of the Federal government by creating three independent branches of government, in part a reflection of American experience with what the founders considered to be King George III's unfettered executive power. Guaranteeing power to the states further limited the power of the Federal Government. There were many imperfections in the Constitution, including a failure to address slavery. There were also limits on democratic government. The fact that even in 2000, President Bush was reelected with fewer votes than Vice President Gore is a reflection of these limits. The new Constitution was hotly debated throughout America after the Convention approved it. Despite the imperfections, it was as Franklin observed, as close to perfect as could be achieved. Madison and Hamilton argued for its ratification in a brilliant series of political essays now called the Federalist Papers. The principal concern threatening ratification was fear--fear of the political unknown and dangers of both democratic rule and the political unknown. One noted scholar writes, "The Constitution was written not by hard-nosed, conservative political bosses determined to reverse the meliorist enthusiasm of the early years, but by idealists ... who had come to recognize, reluctantly, the need to create the dangerous instruments of centralized power." [Bailyn]

Colonial Constitutiions

The Mayflower Compact setr a precidence. It was not a colonial constuitutiion, it was a written contract among the the Pilgrims setting out how they would govern themselves. This was done by the Pilgrims themslves with no apprival from the crown. With this precedent each colony proceeded to write and ratify theor own constitutiions, again with no vetting by the Crown. Beginning with Connecticut, the colonists set about on their own with no legal precedent to enact written constuitutiins. It was also the first written constitution in the world to declare the Lockian idea that 'the foundation of authority is in the free consent of the people'. The various state constitutions reflect their early political cultures, and they're notable for that alone! Pennsylvania's and North Carolina's constitutions created governments that could be described as popular democracies. Voters in Pennsylvania by a sufficient majority could veto acts of the legislature and write off a sizable portion of their debts. [Bridges] These legislatures and contitutions were tolerated by the Crown. This legal foundation in many cases developed during the English Civil War (1642-51) when the Crown essentially lost control of the colonies and Cromwell's Commonwealth took little interest. By the time of the Stuart Restoration (1660), the colonial legislatures and constitutions were so well established that the Stuart monarchs focused on the all important struggle with Parliament did not challenge the developing political structure in the colonies They were esentially legal protections and limits on royal, power that did not exist in Britain itself. Looking back, it seems starteling that the Crown would not have intervened in this process, to direct and control it. The first detailed constituion was the Connecticut Fundamental Orders (1639). These legislatures and contitutiins were tolerated by the Crown. A reader writes, "I think you're right. Charles probably took little notice of the colonials, certainly their constitutions. Their revenue would be another matter! The Crown and Parliament were locked into an all consuming conlict. Probably glad the colonies could take care of their local issues in their own to the extent they gave the colonies any real thought." [Bridges] Thus George III and Parliament were left to confrontb a well established political structure in the colonies that their predeecessors had allowed to develop.

Virginia State Constitution (1776)

James Madison despite his youth played an important, but not major role in the Revolution. Madison with his academic background in history and government participated in the crafting of the Virginia Constitution (1776). He was a Virginia delegate in the Continental Congress. He became a leader in the Virginia Assembly. Madison's primary accomplishment was his role in drafting and promoting the Virginia state Constitution. Madison and George Mason were the key players. One author writes, "But for James Nadison, aged 25, that was not enough. What, after all, was the implication of agovernment promise to 'tolerate' someone's opinion? Surely it was that the government knew better, but it would put up with the invididual's divergent understanding for now. Madisin's proposed substitute said, 'That religion, or the duty which we owe our CREATOR, anthe manner of discharging it, can be directed only by reason and conviction , not by force or violence; andtherefore, that all men are equally entitled to enjoy the free exercise of religion ..." With the excision of the second 'that' and the word 'enjoy,' this was the final language of Section 16. The Convention agreed to it unanimously." [Gutzman] This may not seem all that important, only a single state constitution. Virginia was, however, along with Massachusetts leading the march toward independence. It was also age state wih a substantial population. The original Virginia Constitution was enacted in conjunction with the Declaration of Independence (1776). Virginia was the first state as the Revolution unfolded to adopt a constitution and as Virginia was such an important colony, the document was widely influential as each successive state adopted a constitution. And it would prepare Madison for the role he would play in the Federal Contitutional Convention after the Revolutionary War.

The Articles of Confederation were essentially the first constitution of the United States. The Continental Congress declared independence (1776). The following years the Congress drafted the Articles of Confederation (1777). It was described as a "firm league of friendship" between the 13 British colonies. The Colonies were essentially fighting strong central control in the form of the British Empire. The Articles reflected the concern of the various colonies with central control. Under he Articles the future states were not just autonomous, but sovereign. The states were maintained their "sovereignty, freedom and independence." There was no executive and judicial branches of government. Under the articles, the national government rested with Congress, essentially a legislative body in the for of a committee of delegates representing each state. The Congress had considerable responsibilities such as conducting foreign affairs, declaring war or peace, maintaining an army and navy and a variety of other less important functions. What Congress did not have was the power to collect taxes, regulate interstate commerce and enforce laws. Congress could only ask the states to provide funds. The Articles were adopted by Congress (November 15, 1777) and came into force when the last of the 13 states approved the document (March 1, 1781).

The Constitutional Convention convened in State House (now called Independence Hall) in Philadelphia. It was the same place that the Declaration of Independence had been issued 11 years earlier. The delegates were slow to arrive. A quorum was finally reached (May 25, 1787). The Articles of Confederation had proved to be an inadequate charter for the new republic. The Convention would be a closed undertaking. Guards stood at the entrances to keep out all but the delegates. Two individuals would dominate the proceedings--George Washington and James Madison. Robert Morris of Pennsylvania who the "financier" of the Revolution, opened the proceedings by nominating Gen. George Washington to preside over the Convention. Many were suspicious about the proceedings, believing it was an attempt to create a powerful government that would endanger individual liberties. Washington was not a scholar or great thinker. He was, however, widely trusted. The participation of Washington was reassuring. The vote on Washington was unanimous. It was clear from the onset that Washington would be the first president and thus many delegates were willing to accept a stronger executive than they would have in other hands.
The other key individual at the Convention was James Madison, a political ally of Thomas Jefferson who was absent. Madison, a fellow Virginian, was pleased with the choice of Washington. Madison was one of those who was concerned about the dangers of a new Constitution and powerful central government. Unlike Washington, he was not an imposing figure. The slight of build Madison was, however, an intellectual giant of the highest order. Both Madison and Washington almost did not attend, but for different reasons. Washington whose Army had been poorly supported by the Continental Congress, was not optimistic that politicians would accomplish much. Madison arrived in Philadelphia with a carefully crafted plan which came to be called the Virginia Plan. Madison's critical role at the Convention has resulted in him being seen as the "father" of the Constitution.
Early on in the deliberations, it became clear (by mid-June) that the problems the country faced could not be resolved by modifying the Articles. The delegates decided to draft an entirely new charter.
All through the hot summer, in closed sessions, the delegates debated, and redrafted the new articles proposed. The central issue was how much power to grant the central government. Other important matters were how many representatives in Congress to allow each state. Here there were differences between the large and small states. Also at issue was how these representatives should be elected. Some wanted direct election and others preferred giving the state legislators the authority to select Congressional representatives. The resulting Constitution became the product of many minds well-schooled by the Enlightenment. The Constitution thus stands as a model of statesmanship and the art of compromise.

The Constitution

The Constitution is the supreme law of the United States. Upon ratification by the states, it empowered a new Federal Government with the sovereign authority of the American people. It is the source of all Federal government power. The genius of the Constitution was that it empowered a Federal Government with sufficient authority to achieve the powers assigned to it, but also places severe limitations on the Federal Governmernt so as not to impede on the member stat governments or the rights of individual citizens. The American people relatively free of a large, expensive, and restrictive governmental control proceeded to people a Continent and unleash an era of immensely ccreative economic development making America the most powerful country on earth. It is no accident that a range of inventions appeared in America that made possible its rapid industrial development. The Constitution was conceived to limit the powers of the Federal government by creating three independent branches of government, in part a reflection of American experience with what the founders considered to be King George III's unfettered executive power. In guaranteeing power to the states, it further limited the power of the Federal Government. The Federal Government's powers were clearly delineated and unless expressly stated, all other powers continued to reside with the state governments. The Constitution consists of a preamble and seven articles. The first three articles dealt with the three branches of government (legislative, executive and judicial). Article Four deals with the states. Article Five sets up an amendment process. Article Six deals with several miscellaneous matters (debts, supremacy, and oaths). Article Seven sets out the ratification process.

Imperfections

There were many imperfections in the Constitution, including a failure to address slavery. This was more of an impossibility than a failure. If the delegates had abolished slavery or set up a process to abolish it, the southern states would not have ratified the Constitution. The Constitutional Convention largely side stepped the issue of slavery, but did not ignore it. As powers vested in the Federal Government has to be specifically enumerated, the question of slavery became a state matter. The Constitution did contain two provisions on slavery. First slaves were to partially counted in determining the apportionment of Congressmen and thus presidential electors--the three-fifths compromise. This in effect gave White Southeners greater voting power than Northerners. Thus slave states received a disproportionate number of seats in the House of Representatives. Second, the Federal Government was authorized to end the African slave trade in 1807. There were also limits on democratic government. The fact that even in 2000, President Bush was reelected with fewer votes than Vice President Gore is a reflection of these limits.

Debate Over Ratification

The new Constitution was hotly debated throughout America after the Convention approved it. The arguments for ratification were briliatly presented in the 'Federalist Papers'. Despite the imperfections, it was as Franklin observed, as close to perfect as could be achieved. Madison and Hamilton argued for its ratification in a brilliant series of political essays now called the Federalist Papers. The principal concern threatening ratification was fear--fear of the political unknown and dangers of both democratic rule and the political unknown. One noted scholar writes, "The Constitution was written not by hard-nosed, conservative political bosses determined to reverse the meliorist enthusiasm of the early years, but by idelaists ... who had come to recognize, reluctantly, the need to create the dangerous instruments of centralized power." [Bailyn]

Ratification

Ratification was not a fore-gone conclusion. Quite a number of the founding fathers were opposed, most notably two future presidenrs--Jefferson and Monroe. Another historian writes, "The Union was designed to absirb dufferences among the States, but it could only dob that if the central governmenht hanfled the 'general' concerns of the States. Compromose was essentuialand no one sectionwas susposed to dominate the governmebnt. When that did happen--and it did almost immediatelyafter the Constitution was ratified--secession was openly discussed. It was the impending threat of 'disunion' in 1787 that forced many reluctant delegtes ... to support the Constitution and swallow the pill of compromise in the first place." [McClanahan]

Delagates in debates at the Constitutional Convention expressed a need to prevent the new Federal Government from abusing its considerable powers. The oratory here was impasioned. Opponents of a strong Federal government charged that the Constitution emerging would result in tyranny. Of course all delegates had the experience with British violations of civil rights both before and during the Revolution. Some delegates demanded a "bill of rights" that would spell out the rights of citizens amd limitations on Federal pwer in detail. During the subsequent debate over ratification it became obvious that provisions restricting Federal powers were needed to ensure ratification. It was not possible to actually rewrite the Constitution approved in Philadelphia. Thus it was decided to add 10 amendments to the Constitution. Some state conventions called to consider ratification demanded such amendments. Others states only ratified the Constitution with the proviso that such amendments would be offered. the First Congress of the United States thus proposed 12 amendments to the Constitution (September 25, 1789). These amendments were submitted to the 13 state legislsatures for their approval. These amendments met most of the concens of the anti-Federalists.
The first two of these proposed amendments concerned the number of constituents for each Congressional distruct and the compensation of Congressmen. It is interesting to note that in the midst of considering such fudamental issues that Congressmen included their salaries. These two amendmets were not ratified. The other 10 were ratified by three-fourths of the state legislatures. These 10 amendments are commonly called the Bill of Rights and have since become a critically important part of the Constitution.

The Constitution primary deals with the structure and authority of the Federal Government and the limits on its power to preserve the powers of the individual states. It does not provide for basic civil liberties. These were provided in the Bill of Rights to ensure ratification. Civil liberties are guarantees of basic political and social rights. They are government guarantees of freedom, justice, and equality to each individual citizen. Basic civil liberties afirmed in the Bill of Rights are based on English Common Law strongly influenced by the Enlightenment. They include freedom of speech, press, and religion. A key concept is the due process of law. They basically involve limitations on the power of the state to restrain or dictate individual behavior. A basic tension exists between the concepts of equality and liberty. Equality implies the ordering of liberty so that one individual's freedom does not infringe on the rights of others. Liberty implies the right to act in ways permitted to others. The struggle for civil liberties began before the ratification of the Constitution. And after the Ratification of the Constitution, America has struggled with the need to maintain order while upholding basic civil rights.

The Constitution today is along with the flag, the two basic icons of the American Republic. This was not the case in the early years of the Republic. The two political parties that emerged were the Federalists (those who supported the Federal Constitution) and the Anti-Federalists (those with great reservations about he Federal Constitution. The early Federalists were Washington, Adams, and Hamilton. The early anti-Federalists who evolved into the Democratic Republicans were led by Jefferson. Ironically Jefferson was joined by Madison who the most important figure in crafting the Constitution. Once the Democratic-Republicans gained control of the Federal Government, their concern over the Constitution itself melted away. They saw that they could pursue their political nd economic controls through the once feared Constitution. Thus while the Federalists disappeared as a political opposition, the Federal Constitution they championed slowly evolved into a revered icon of American democracy. Tis occurred slowly as the constitution both grew in age and the power and success of the American Republic increased. Politicians who seem to challenge the Constitution can run into considerable trouble. Even as brilliant a politician as Franklin Roosevelt was significantly weakened when his court packing attempt was seen as an assault on the Constitution.

While an icon of American democracy, the American Constitution and the Republic it created is not without its modern critics. Most of the critics come from the left of the political spectrum, The Constitution and the American Republic are crticized historically for leaving many groups out of the political process (landless white, blacks, and women). Critics of modern America fundamentally address inequities in America, especially disparities in the distribution of wealth. The historic criticisms are generally written by authors with flawed perspectives. They use modern values to evaluate historic periods. It is really tiresome to even address such deeply misguided criticisms. It is true that it has taken far too long to address the needs of various groups. The point is, however, that the Constitution has provided the flexibility to address their just demands. While it is fair to criticize the extended periods involved, this needs to be put in perspective of real political alternatives. Did European countries address these concerns more effectivelly and faster?
More important are criticism of modern America. There are indeed inequities in the distribution of wealth that need to be addressed. Unfortunately the criticism from the left tends to be highly ideological. Rarely do they promote solutions involving creating wealth. Rather the solutions has been the socialistic zero sum approach of redistributing existing wealth. Avoided is the fact that the great experiments in socialism (the Soviet Union, Eastern European satellites, Cuba, China, Viet Nam, Cambodia, and North Korea) have not only created poverty, but monstrous tyrannies as well). More moderate approaches in Western Europe have brought not only economic stagnation, but societies facing the same kind of inequalities as America. In Europe the minorites vary from country to country and include people from former colonies as well as growing Muslim population.

There was no provision for political in the American Constitution. President Washington was opposed to the factionalism that parties represented. Political parties, however, area key element in the American political system. They began to form even before Washington left office. The initial political contest was between Hamilton's Federalists representing the northern elite and Jefferson's Democratic-Republicans representing agrarian and backwoods interests. The Federalists soon lost out in their attempt to restrict the suffrage. In the first half of the 19th century, political contests were between the Whigs and the Democrats who won most of the elections. At the time farming and Western interests wanted nothing more than being left along by Government. Beginning with Jefferson in 1800, this is just what the Democrats provided. The Republican Party was founded in 1856 out of the collapsing Whig Party and the growing northern sentiment for the abolition of slavery. The election of the Republican candidate, Abraham Lincoln, in 1860 meant Civil War. Since the Civil war, the Democrats and Republicans have remained the major American political parties, although there has been a startling reversal in the principles of the two parties.

Voters

The right to vote is one of the most fundamental rights of a democratic system. This right was, however, not one addressed in the Constitution. Probably because of that, the question about voting is addressed by more amendments than any other issue. It was left to each state to decide who could vote in both Federal and state elections. The franchise was a first very limited, restricted to adult white men with property. One theme in American history was the gradual expansion of the franchise. As a result, several amendments have addressed the right to vote. The Jacksonian movement largely succeeded in expanding the franchise to all white men through the political process in each state. Further expansion of the franchise required Constitutional amendments. Expanding the franchise to Afro-Americans was only possible because of the Civil War and accomplished by the 15th Amendment (1870). It took another six decades to obtain the right to vote for women. The Suffragette Movement is a major effort to expand American democracy, This was accomplished after World War I by the 19th Amendment (1920). Residents of the District of Colombia were granted the right to vote by the 23rd Amendment (1960). The pool tax was finally abolished by the 26th Amendment (1964). Finally the vote was extended to 18 years olds during the Vietnam War. Proponents argued with considerable validity that if a young man was old enough to be drafted, he was old enough to vote. This was accomplished by the 21st Amendment (1971).

The central step taken during Reconstruction, in effect the crown jewels, was the passage of the 13th-15th amendments. These amaendments abolished slavery and guaranted the civil rights, including the freed slaves right to vote, and ensured access to equal protection of the law. The Emancipation Proclamation (1863) was an exective order and open to legal chalenge. It was inevitable that once the former Condereate states were readmitted to the Union that slave owners would sue in the Federal courts for the return of their 'property'. Only incorporating emancipation in the Constitution through an amendment would make emancipation permanent and unasailable. The Republicans decided to go beyond simple emancipation and take the further step of granting citizenship to the freed slaves. The final amendment resulted from Southern efforts to prevent the freed slaves now citizens from voting. White opposition in the South largely undermined the achievement of tee goals invisioned. But enshrined n the Coinstitution, these amendments would evetually a century later make it possible to achieve the goals envisioned.

Other Principles and Procedures

The Constitution is important, but there is much more to governing han the Constitution. Britain has a free, democratic political system with no written constitution while Stalin at the peak of the terror introduced a liberal, democratic constitution (1935). American goverance is centered on the Constitution, but to understand the American political system you have to look beyond the Constitution. Key institutions like political parties are not even mentioned in the Constitution and were opposed by George Washington. Washington could not prevent the emergence of political parties, although he set many important precedents as did orgee founding fathers. Court decesions have also established many princioles. Trditions and practices of the American people are also important. Other documents have also been importabt such as the Federalist Papers as well as presidential sppeches like the Gettyburg Address. One author explains the range of documents, symbols, and sandards that form comprehensive, adaptable unwritten Constitution. [Amar]

The American Tea Party

The American Constiution established a system of limited Government. Many Americans have come to favor a mucvh more expansive role for Government. About half of America, unlike Europe, rejects the big-Government socialist solitions to major national issues. The result after the financial crisis of 2008-09 and President Obama's stimulus and other policies expandfing the role of the Fedeatl Government (like Obama Care was the rise of the Party. It was a first ignored by the national media, but as it grew in deminions the main-stream media and Democratic politicans began attackingsaying that it was both racist and immoral (uncaring about poor people). This is how it was reported in Europe. The much maligned Tea Party rather than being impotent 'Tea Baggers' became a major factor in the stunning repudiation of President Obama and his Congressional supporters in the 2010 mid term election. It simply is not true that the Tea Party is either racist or immoral. The Tea Party is of course a diverse group, but there are three fundametal policies advocated by the Tea Party: 1) Constitutiona; (limited) government, 2) low taxes, and 3), free market capitalism. Of course socialist politicans dislike the policies, because they limit their power by restructing Government spending. But because most Americans favor these three issues in principle, it is more effective politically to claim that the Tea Party is racist and immoral. An those who think that the sollution to major problems is increaded stimulus financed by defecit (borrowing) spending shold look at Europe to see what the outcome is. As Mrs. Thatcher famously said, "Socialism is fine until they run out of other people's money to give away." It is unclear at this time just how the American electorate will come down on the basic issue of the appropriate role for Government.

State Constitutions

Americans when they talk about contitutional goverment almost always are speaking about the Federal Contitution. In fact virtully all Aneriucans live under two constitions. The second constitution is of course the state constitutins which often touch upon personal lives to a greater extent than the Federal contitutions. Federalism is often descrobed as the great engine of change in American politics. And state governments have been attempting to address some of the very difficult issue America faces. And unlike the Federal Constitution are more anenable to change. One author writes, "If one is trying to unserstand the realities if 'American constitutionalism', it is essential to look beyond the U/S. Contitution to the many other constitutions that are part of the American political system .... Even if one acceps the proposition that constitutional federalism --that is, state autonomy free from national government cointrol--is only relatively weakly protected by the national constitutiion, there can be no doubt that many issues of great importance are decided--or, not adequately confronted--within the states." [Levinson]

Sources

Amar, Akhil Reed. America's Unwritten Constitution (2012), 620p.

Bailyn, Bernard. To Begin the World Anew: The Genius and Ambiguities Of the American Founders (Knopf, 2002), 185p.

Bridges, John. E-mail (January 21, 2014).

Gutzman, Kevin R.C. James Madison: And the Making of America (2012).

Levinson, Sanford. Framed: America's 51 Constitutions and the Crisis of Governance (2012), 456p. Levinson believes that the Federal Cons=titution has rsulted in a disfunctional political system. He is in part correct, but does not accurately assess the problem. The Federal Coinstition was established to limit governmernt power and authority. Today many Democratic politicans, including President Obama, want to significantly expand the role and authority of the Federal Government.